Kenchaiah vs Rudramma and Others

B.S. Patil, J.—This Regular Second Appeal is filed against the judgment and decree dated 25.01.2008 passed by the learned Civil Judge (Sr.Dn.), Chikmagalur allowing R.A. No. 72/2006 and setting aside the judgment and decree passed in O.S. No. 35/2004.

Appellant was the 1st defendant before the Trial Court. O.S. No. 35/2004 was filed by respondents 1 and 2 herein seeking a declaration that judgment and decree obtained in O.S. No. 114/1998 by the appellant was the result of fraud, misrepresentation and undue influence on the plaintiffs and that plaintiffs were the legal heirs of late Subbaiah and 1st defendant - appellant herein was not his legal heir. A mandatory injunction was also sought against defendants 2, 3 and 4 - respondents 3 to 5 herein to dismiss the appellant - 1st defendant from service by holding proper enquiry into the matter and appoint plaintiff No. 1 on compassionate ground.

It is not in dispute that appellant herein had filed a suit in O.S. No. 114/1998 seeking a declaration that he is the son and the legal heir of deceased Subbaiah and that he was entitled for a job on compassionate ground as successor of late Subbaiah @ Devaiah. Smt. Rudramma, wife of late Subbaiah was arrayed as party defendant in the said suit. Sudha, who was the minor daughter of late Subbaiah, was not arrayed as a party.

A compromise was entered into between the appellant herein and Smt. Rudramma. Accordingly, compromise petition under Order XXIII Rule 3 was filed before the Court whereunder it was agreed that the appellant herein be declared as son of late Subbaiah entitled for a job on compassionate ground as successor of Subbaiah and that Smt. Rudramma would not come in the way of the appellant herein getting the said job. The said compromise was recorded and a decree in terms of the compromise was passed. Based on the said decree, appellant herein had secured job under the Zilla Panchayat, Engineering Department, Chikmagaluru.

Subsequently, differences having arisen between the parties, particularly Smt. Rudramma and Sudha on the one hand and Sri Kenchaiah - appellant herein on the other, the present suit in O.S. No. 35/2004 was filed seeking a declaration that the decree obtained in O.S. No. 114/1998 was the result of fraud and misrepresentation and that they alone were the legal heirs of late Subbaiah and not Kenchaiah - appellant herein. Plaintiff No. 1 Smt. Rudramma contended that she was the wife of late Subbaiah and plaintiff No. 2 - Sudha was their daughter; the said Subbaiah was working as Gangman under the 2nd defendant - Zilla Panchayat, and he died leaving behind the plaintiffs as sole legal heirs; after his death, defendant No. 1 Kenchaiah, who was none other than the son of the brother of late Subbaiah came to the house of the plaintiffs and assured them that he would secure all the death benefits like, P.F., gratuity, pension, etc., to them and would also secure appointment on compassionate ground to plaintiff No. 1 and thus, obtained signatures on various papers. Plaintiff No. 1 being illiterate and unaware of the consequences had set her signature on the blank papers. Taking advantage of the same, defendant No. 1 had instituted a suit and managed to get signatures of the 1st plaintiff on the compromise petition and obtained the decree. Thus, it was contended that by playing fraud and by misrepresentation, defendant No. 1 obtained the decree in O.S. No. 114/1998.

Defendant No. 1 - appellant herein resisted the suit. He urged that plaintiff No. 1 was his mother and plaintiff No. 2 was his sister. He also urged that plaintiff No. 1 being over aged and illiterate, was not entitled for the job and therefore, he had claimed appointment on compassionate ground. He supported the compromise petition entered between himself and plaintiff No. 1 and denied the allegations of illegality committed by him in securing the said compromise decree. He also urged that the suit was barred by limitation. He further urged that he was married and was having children and the job he had obtained was the only source of income for his family.

The Trial Court framed necessary issues regarding proof by the plaintiffs that they were the sole legal heirs of deceased Subbaiah and that defendant No. 1 had obtained the judgment and decree in O.S. No. 114/1998 by playing fraud. Defendant No. 1 was called upon to prove that the suit was barred by limitation.

Both parties led evidence. The Trial Court, on consideration of evidence on record, has found that plaintiffs were able to establish that they were the only legal heirs of deceased Subbaiah and defendant No. 1 was none other than the son of the brother of deceased Subbaiah. However, it negatived the plea of the plaintiffs that defendant No. 1 had obtained a decree in O.S. No. 114/1998 by playing fraud and misrepresentation. Regarding the plea of limitation, the Trial Court held that the suit was barred by limitation because plaintiff No. 1 was aware of the judgment and decree passed as she had been receiving money from defendant No. 1 who had sent through Money Order certain sums of money periodically after joining service and therefore, she had the knowledge of appointment obtained by defendant No. 1 by virtue of the compromise decree passed.

The Trial Court also found that plaintiff No. 1 having admitted her signature on the compromise petition and having received money from defendant No. 1 periodically by way of Money Order could not be heard to say that fraud was committed against her by defendant No. 1. Therefore, the Trial Court dismissed the suit as barred by time and also held against the plaintiffs on the plea raised regarding fraud committed against them. Aggrieved by the same, plaintiffs preferred an appeal before the lower Appellate Court.

The lower Appellate Court has reversed the findings recorded by the Trial Court. It has come to the conclusion that the plaintiffs, having established that they were the sole legal heirs of late Subbaiah and that defendant No. 1 was the son of the brother of late Subbaiah, were entitled to succeed inasmuch as it was quite clear that defendant No. 1 had played fraud and had misrepresented the facts before the Court in O.S. No. 114/1998 while obtaining the decree based on compromise petition and that the said decree obtained was against public policy. It further found that it might be true that defendant No. 1 was sending some money to the 1st plaintiff, but mere acceptance of amount by plaintiff No. 1 could not form basis for holding that she had the knowledge of appointment obtained or the compromise decree passed and therefore, the suit was barred by limitation. The lower Appellate Court has also further held that Sudha plaintiff No. 2 was not made a party, though she was a necessary party. Therefore, as against her, the compromise decree was not binding and the bar of limitation had no application. However, as regards the relief of mandatory injunction sought against the employer - Zilla Panchayat to dismiss defendant No. 1 and hold proper enquiry against him and to appoint plaintiff No. 1 on compassionate ground, the lower Appellate Court declined to grant any relief observing that it was for the employer to take appropriate action in accordance with law. Being aggrieved by this judgment, appellant is before this Court in this appeal.

I have heard the learned counsel for both parties. I find from the judgments passed by the Courts below, the pleadings and the evidence on record that there is absolutely no material produced by the appellant to establish that he was the son of late Subbaiah. Trial Court has found against the appellant holding that he was not the son of Subbaiah, but was the son of the brother of Subbaiah. It cannot be disputed that compassionate appointment can be given to the dependents of the deceased and the dependents of the deceased would be the widow, son or daughter. The compromise decree obtained was designed to defeat the welfare scheme introduced by making an exception to the general recruitment by providing for compassionate appointment to the legal heirs of deceased employee so as to get over from the immediate crisis to which the family had been pushed due to the sudden death of the breadwinner. The said laudable object behind the provisions providing for compassionate appointment were indeed sought to be defeated by obtaining a compromise decree suppressing the facts and making false assertion that appellant herein was the son of deceased Subbaiah.

The findings recorded by both the Courts in this regard concurrently show that defendant No. 1 - appellant herein was not the son of deceased Subbaiah, but was the son of brother of deceased Subbaiah. Thus, appellant herein could not have been given compassionate appointment, but for the compromise decree obtained. The fact that plaintiff No. 2 - respondent No. 2 herein, who was the daughter of deceased Subbaiah was not made a party to the proceedings culminating in the compromise decree assumes significance in this case because the said compromise would not be binding on her. She was a proper and necessary party to the proceedings that resulted in the compromise decree. Therefore, it cannot be said that suit filed by her was barred by time because she was not a party and there was nothing to show that she was aware of the compromise decree obtained. Therefore, the lower Appellate Court was right and justified in holding that the suit was not barred by time.

The lower Appellate Court was also justified in recording a finding that the compromise decree obtained was to defeat certain provisions of law and was, therefore, against public policy. Whether the appellant intended to defraud the plaintiffs or plaintiff No. 1 was an innocent illiterate person who was defrauded pales into insignificance because the appellant indeed intended to defraud the legitimate aspirant i.e., persons who would have secured appointment, but for the illegal appointment secured by the appellant based on the compromise decree obtained by him by suppressing true facts. In such circumstances, this Court cannot, on technical grounds or on sympathetic consideration interfere with the well considered judgment and decree passed by the lower Appellate Court.

No substantial question of law arises for consideration and therefore, the appeal being devoid of merit is dismissed.